Court of Appeal: MMBA Requires Bargaining Over Binding Arbitration

In City of Palo Alto v. Public Employment Relations Board, the Court of Appeal held binding interest arbitration is a mandatory subject of bargaining under Government Code section 3507.  As a result, the Court found the City violated the Meyers-Milias-Brown Act when it pushed through a local initiative to repeal binding interest arbitration while refusing to bargain with Palo Alto Firefighters, IAFF Local 1319.  The Court upheld PERB's factual determinations and rejected the City's arguments.  The Court also directed PERB to issue a new remedial order to correct a technical issue.

Palo Alto adopted binding interest arbitration by charter amendment for public safety officers in 1978.  The charter required that a neutral arbitrator would decide disputes about wages, hours, and other terms and conditions of employment if the City and the unions reach impasse in contract negotiations.  In 2011, the City tried to take binding arbitration away so that it could unilaterally impose terms on the firefighters.

At the time, the City claimed it did not have to meet and consult with the union about the change and ignored repeated demands to bargain.  The City claimed an earlier case about binding arbitration under MMBA section 3505 meant it did not have to bargain with the union.

But the Court rejected the City's claims.  The Court decided PERB properly decided that "mandatory subjects for consultation under section 3507 are distinct from mandatory subjects of meeting and conferring under sections 3504 and 3505."  As a result, the Court held, the City had a duty to bargain with Local 1319 under 3507 even though it did not under 3505.

The Court also rejected the City's claim that bargaining under section 3507 is substantially different than bargaining under section 3505.  In its briefs, the City claimed that a "meet and consult" under section 3507 was much less robust than a "meet and confer" under section 3505.  But the Court disagreed, deferring to PERB's determination that the two processes were very similiar, if not identical.  Since the City failed to even meet with the union, the Court held the City clearly violated its duty.

The Court also directed PERB to correct its remedial order.  In its decision, PERB ordered the City to rescind a resolution floating the ordinance.  But the Court noted PERB cannot order a City to rescind a resolution, but it can declare that a resolution is void.  As a result, the Court directed PERB to issue a new order.  Accordingly, the case will go back to PERB for a further order remedying the City's violations of the MMBA.

Mastagni Holstedt attorneys David E. Mastagni, Issac S. Stevens, and Jeffrey R. A. Edwards represented Local 1319 in the appeal.  Mr. Edwards represented Local 1319 in oral argument.

Appellate Court: Pulbic Agencies Cannot Avoid MMBA Fact-Finding Over Individual Bargaining Disputes

In a closely watched opinion, the Fourth District Court of Appeal held the provisions in the Meyers-Milias-Brown Act (MMBA) for impasse resolution through advisory fact-finding apply to impasses arising during the negotiation of any bargainable matter, and are not limited to impasses arising during the negotiation of a comprehensive memorandum of understanding (MOU).  Overturning the trial court, San Diego Housing Commission v. Public Employment Relations Board held the fact-finding provisions apply to impasses arising during the negotiation of any bargainable matter.  The court stated its holding is consistent with the parties’ obligation to bargain on any bargainable issue, and prepare an MOU to reflect that agreement.


The Court decisively ruled in favor of PERB, which had issued its own precedential decision effectuating this broad application of the fact-finding procedures.  The opinion sends an important message to local agencies seeking to avoid the fact-finding obligations by holding back proposals from negotiations only to submit them after an MOU has been ratified.  A common tactic of agencies seeking to impose controversial policies that may drive contract negotiations to impasse, such as subcontracting unit work, has been to present the proposal while the parties are in contract, attend a few perfunctory meet and confer sessions, and then immediately impose the policy without fact-finding.  


This opinion will provide strong incentive for agencies to bring all their proposals to the table to be resolved in the give and take of negotiations and discourage efforts at piecemeal imposition.  The employer's contention that fact-finding should be limited to just MOU negotiations and not discrete bargainable issues conflicts with the purpose of the MMBA, which is to promote full communication between the agencies and unions through a reasonable method of dispute resolution.

In a companion case, Co. of Riverside v. Public Employment Relations Bd., the Appellate Court adopted the same holding.  In Riverside, the court also dispatched the agency's contention that the entire fact-finding statute is unconstitutional.  Unfortunately, some public agencies reflexively challenge any modification in their bargaining obligation as a purported violation of their authority to set compensation under the home rule of California Constitution. For example, the Fire Fighters Procedural Bill of Rights was unsuccessfully challenged as violating the home rule. The court dismissed this argument stating "fact-finding provisions do not violate this section of the California Constitution because the provisions do not divest a county or a city of its final decisionmaking authority."  

Court of Appeal: El Dorado County Violated DSA's Rights

In El Dorado County Deputy Sheriff's Association v. County of El Dorado, the Court of Appeal reversed the trial court to find the County violated the Meyers-Milias-Brown Act by eliminating deputy sheriff positions without meeting and consulting with DSA.  The Court decided the County's actions are invalid and the County must meet and consult with the DSA on the issue.

In 2011, the County deleted several positions from the DSA's bargaining unit as part of a plan to civilianize perimeter security at county courthouses.  The County claimed it did not have to give the DSA notice it was deleting the positions.  However, the County had a local labor relations rule stating "The [County] shall, after notice and consultation with affected employee organizations, allocate new classifications or positions, delete eliminated classifications or positions..."  The Court held this local rule required the County to give notice and engage in consultation with the DSA before it eliminated its positions.

The County tried to get out of its obligations by claiming that MMBA section 3505 does not require the County to engage with the DSA before deleting positions and that requiring the County to consult with the DSA somehow interfered with the authority of the board of supervisors over the County's budget.  The Court rejected both claims.

As the Court noted, Government Code section 3507.1 allows local governments to create their own, local labor relations rules as long as those rules comply with the Meyers-Milias-Brown Act.  As a result, different local governments often have somewhat different rules for labor relations.  In this case, the Court of Appeal made clear section 3507.1 "requires a local public agency to follow its own rules."  Thus, it doesn't matter if the same rule would apply in another jurisdiction without the same local rule.

Mastagni Holstedt, APC attorneys Kathleen N. Mastagni Storm and Jeffrey R. A. Edwards represented the El Dorado DSA in the appeal.

CPRA May Grant Access to Personnel Records When There is a Strong Public Interest in Disclosure

In Caldecott v. Superior Court of Orange County, the Fourth Appellate District found records associated with a personnel complaint were subject to disclosure under the California Public Records Act ("CPRA"). The court also found an employee's motivation for requesting the documents was irrelevant. Also, whether or not the employee already had the documents was irrelevant.

Caldecott involved a former Newport-Mesa Unified School District employee's request for documents associated with a personnel complaint. John Caldecott worked as an Executive Director of Human Resources. He filed a personnel complaint against District superintendent Fred Navarro. Caldecott alleged Navarro created a hostile work environment and committed misconduct in regards to employee salaries. The District did not take any official action against Navarro, finding Caldecott's allegations unsubstantiated. Subsequently, the District fired Caldecott without cause. Caldecott alleged he was fired in retaliation for filing a complaint against Navarro.

Caldecott requested documents under the CPRA that were associated with his complaint against Navarro. Caldecott requested copies of the District's response to his complaint, and an e-mail Caldecott sent to the District's board regarding the response. Caldecott already had the documents, but he wanted the freedom to publicly disclose the documents without fear of liability. The District denied Caldecott's request claiming disclosure would cause an invasion of personal privacy. The District also denied his request because of "the potential impact of an unjustified accusation on the reputation of an innocent public employee."

The Court of Appeal ruled the documents were subject to disclosure under the CPRA. Caldecott's motivation behind his request and the fact that he already had the documents were irrelevant. Rather, the court weighed the potential harm to Navarro's privacy interests against the public's interest in disclosure. The court found a strong public interest in judging how Navarro responded to Caldecott's claims, especially in light of Caldecott's termination without cause. The court also found a strong public interest in assessing how the District's elected board treated the serious misconduct allegations against its highest ranking administrator. The court awarded Caldecott attorneys fees and costs for successfully challenging the denial of a CPRA request.

This case did not concern the confidentiality of peace officer personnel records. Penal Code section 832.7 creates additional protections for peace officer and correctional officer records.

Mastagni Holstedt, APC Files Amicus Brief at California Supreme Court

Mastagni Holstedt, APC attorneys filed an amicus brief with the California Supreme Court about the application of the California Public Records Act (“CPRA”). The CPRA defines the electronic communications of public officials as public documents. Therefore, any public citizen may acquire the electronic communications of public officials through an information request.

The California Court of Appeal for the Sixth District held when a public official sends an electronic communication using a personal cell phone or e-mail account, those documents are not public records. In its brief, Mastagni Holstedt argues the ruling is incorrect and explains some of the unintended consequences to labor associations. The ruling allows public officials to do business behind closed doors, circumventing the purpose of the CPRA. Furthermore, it prevents public unions and other entities from holding public officials accountable by limiting their access to information.

Mastagni Holstedt, APC filed the brief to bring important legal arguments to the Court’s attention, ensuring the rights of employee organizations are protected. Mastagni Holstedt attorneys David E. Mastagni, Isaac S. Stevens, and Jeffrey R. A. Edwards represent the amici in the matter.

Supreme Court Grants Review, Stay in Controversial Peace Officer Personnel Records Case

The California Supreme Court granted review and a stay today in the controversial Court of Appeal decision in People v. Superior Court (Johnson). The Court of Appeal ruled prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision delivered a blow to officers' confidentiality interests in their personnel records. The California Supreme Court will decide whether a prosecutor must file a Pitchess motion before accessing peace officer personnel files to search for Brady material that may be subject to disclosure to a criminal defendant.

The Court of Appeal previously considered whether the prosecution is entitled to direct access to peace officer personnel files to search for Brady material. To answer this question, the Court of Appeal considered the interplay between Brady v. Maryland, which requires the prosecution to disclose evidence material to the defense and Pitchess discovery procedures, which hold officer personnel records are confidential absent discovery under Evidence Code section 1043.

The Court of Appeal divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify Brady material subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense.

The Court of Appeal found Section 832.7 does not preclude prosecutors' access to officer personnel files for Brady purposes. The court noted that because police are considered part of the "prosecution team," the two agencies can share confidential information. In coming to this conclusion, the Court of Appeal disagreed with People v. Gutierrez, and its progeny, which held the prosecution could not access officer personnel files absent a motion under section 1043. Gutierrez, following a prior California Supreme Court case City of Los Angeles v. Superior Court (Brandon), found the statutory Pitchess procedures implement Brady rather than undercut it, because a defendant who cannot meet the less stringent Pitchess standard cannot establish Brady materiality. Rather than following this precedent, the Court of Appeal ruled prosecutors may conduct a preliminary inspection of officers' personnel files. But if the prosecutor identifies Brady material, the prosecutor must file a Pitchess motion before disclosing it to the defense.

This case will be very important for law enforcement throughout the state. The Court of Appeal's decision has already been used by public agencies and courts to circumvent the Pitchess process. The California Supreme Court should overturn this misguided decision and restore Pitchess. A favorable Supreme Court decision will protect officers' privacy rights and prevent unnecessary disclosures of confidential personnel information.

Court of Appeal Publishes Indio Opinion After Requests Filed by PORAC LDF, Upland POA

The California Court of Appeal issued an order directing the publication of its earlier case Indio Police Command Unit Association v. City of Indio. As previously noted on this blog, in that case the court upheld an award of attorney's fees based on the injunction noting that the association's lawsuit enforced an important public interest.

Regarding the labor relations issue, the Court of Appeal held that the City violated its meet and confer obligations under the Meyers-Milias-Brown Act (MMBA). The police chief advised the PCU's counsel of his intention to implement a "strategic reorganization" plan of the department's command structure, which would eliminate the captain and four lieutenant positions, and result in the demotion of certain PCU members and the layoff of one PCU member. The police chief then asserted that he could implement this reorganization plan without providing an opportunity to bargain.

The Court of Appeal rejected the City's argument. Generally, an employer's action is subject to the mandatory bargaining requirements of the MMBA if it will have a significant effect on wages, hours, and other terms and conditions of employment, including a permanent transfer of work away from a bargaining unit. Here, the City plan would eliminate certain positions represented by the PCU, demote some of the officers, resulting in the loss of wages and seniority, and layoff at least one PCU member. The plan, therefore, would have a significant impact on wages, hours, and other terms and conditions of employment and the City had an obligation under the MMBA to meet and confer over it.

Originally the case was unpublished, meaning that no other party could cite to it as support for their legal arguments. However, recognizing the importance of this case to public safety labor associations, PORAC LDF and the Upland POA filed requests that the court publish its decision. On October 9, 2014 the court granted that petition allowing all attorneys to rely on this strong precedent to enforce the rights of public service employees.  Mastagni Holstedt attorney Jeffrey R. A. Edwards filed the request on behalf of PORAC LDF. Upland POA President Moe Duran filed the request on behalf of Upland POA.

Court of Appeal Upholds Union's Attorney Fees Award After City Failed to Meet and Confer

On September 15, 2014, in Indio Police Command Unit Association v. City of Indio, the California Court of Appeal upheld a $102,900 attorney fees award to a police officer association. The association obtained an injunction against the City of Indio for violating the MMBA meet and confer requirements.

In City of Indio, the City notified the Indio Police Command Unit Association that it planned to implement a "strategic reorganization" of the Department's command structure. The plan eliminated the Captain and four Lieutenant positions. The plan also reduced command staff from five sworn officers to two sworn officers and one unsworn supervisor. The Department's legal counsel claimed the decision to reorganize was not subject to the MMBA meet and confer requirements. The City agreed only to negotiate the impact of the reorganization. The association obtained an injunction preventing the City from implementing the reorganization plan until it met and conferred in good faith. The City finally complied and the parties reached an agreement.

The court awarded attorney fees to the association based on the private attorney general statute. The court found the association enforced important rights affecting the public interest. The court also found the litigation benefited not only the association and its members, but all other employee associations within the City. Awarding attorneys' fees in such cases encourages employee associations to enforce the MMBA, even when the financial burden of filing a lawsuit outweighs any possible recovery.

Court of Appeal Denies Unemployment Benefits to Employee Discharged for Dishonesty

On September 12, 2014, the California Court of Appeal in Irving v. California Uninsurance Appeals Board denied a school district employee unemployment benefits because he was discharged for misconduct. The court found the employee took excessive breaks on four occasions and falsified time records.

Unemployment Insurance Code section 1256 disqualifies employees for unemployment benefits if the employee has been discharged for misconduct. Here, the employee admitted taking four different breaks exceeding the allowable 50 minutes. He also admitted falsely reporting his break time on the District's time records. The court disregarded that other employees had also taken breaks longer than 50 minutes. The court stated it is "legally irrelevant" that other employees may have engaged in similar misconduct when determining eligibility for unemployment benefits because of the dishonesty allegation.

6th Appellate District: Reversal for Wrong Standard Applied

In Rodriguez v. City of Santa Cruz, the Sixth Appellate District ruled against an order from the superior court denying a petition. The petition was filed by Josafat Rodriguez Jr., a former Santa Cruz police officer, who applied to the City of Santa Cruz for industrial disability retirement. He claimed a psychiatric disability due to post traumatic stress disorder (PTSD). After the City denied his application, he challenged the ruling by filing a "Petition for Writ of Mandate." This petition was subsequently denied by the superior court. In deciding against the court's ruling the appellate court held that the wrong standard of review had been applied.

The appellate court explained that in reviewing the City of Santa Cruz's decision, the trial court was required to use its independent judgment. This however, is not the standard that was actually applied. In lieu of applying its own independent judgment the court deferred to the findings of an Administrative Law Judge who decided on behalf of the City of Santa Cruz, that the petition was not credible and that his claim should be denied. In reviewing the statement of decision of the trial court, it was evident that instead of applying its own independent judgment, it rendered a decision on the grounds of its determination that there was sufficient evidence to support the Administrative Law Judge's finding. In addition the trial court failed to articulate its independent findings in regards to key issues.

Ultimately, the appellate court ruled that while referencing a standard of independent judgment, this standard was not actually applied when determining whether to grant Mr. Rodriguez's petition. For that reason the order denying the petition was ruled against. This ruling emphasizes the importance of applying and adhering to the proper standards, as it relates to review.

Court of Appeal Ruling Requires Prosecutors to Review Confidential Police Personnel Files

On August 11, 2014, the California Court of Appeal held in People v. Superior Court prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision places the burden of identifying Brady information on the prosecutor. In addition, it narrows confidentiality protections for officers' personnel files.

This case delivered a blow to officers' confidentiality interests in their personnel records. In Brady, the U.S. Supreme Court announced a rule requiring the prosecution to disclose evidence that is favorable and 'material' to the defense. Such evidence includes past alleged officer misconduct contained in confidential personnel files. California state law provides protections against disclosure of such information in civil or criminal proceedings by court order. Before disclosure, the court must conduct a private 'in camera' review of the officer's personnel file to determine if the information must be provided to the defense.

Public agencies employing peace officers are generally responsible for reviewing personnel files for possible Brady information relevant to the defense. This case places the burden of review on the prosecution.

The Court divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify information subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense. The Court held Penal Code section 832.7(a) does not preclude prosecutorial access to officer personnel files for Brady purposes. The Court noted that because police are considered part of the "prosecution team," the two agencies can share personnel files without violating personnel file confidentiality laws.

This case has far ranging implications for law enforcement. Unless overturned, prosecutors will be allowed to routinely inspect peace officer's personnel records for Brady purposes and be required to file a Pitchess motion to have Brady material disclosed to the defense. This game changing decision will result in unnecessary disclosures to the prosecution and deprive officers of the ability to challenge. The court decidedly shifted the balancing of interests against officers' privacy rights. Look for this decision to trigger revisions to your local Brady policy. Request to participate in any policy revisions.

Court of Appeal Blocks Criminal's Attempt to Bypass Pitchess

In People v. Davis (Cal. Ct. App., June 12, 2014) 14 Cal. Daily Op. Serv. 6496, an appeals court held a convicted criminal could not bypass the Pitchess process on appeal.  The defendant attempted to get access to a peace officer's personnel file to try to claim the court made a mistake when it did not grant a Pitchess motion before trial.  The court decided he did not have a right to independent appellate review concerning a post-judgment Brady order. 

Instead, the court decided even in cases where a defendant can get discovery after a trial, he must comply with the Pitchess v. Superior Court, procedure and requirements.  The requirements include showing that the discovery sought is material to pending litigation.

BART POA Wins Injunction Protecting Identity of BART Officer Involved in Critical Incident

In BART Police Officers Association v. Bay Area Rapid Transit District et al., the BART Police Officers’ Association (BPOA) successfully defended the privacy rights of its members and prevented the unlawful disclosure of the name of an officer under investigation in a critical incident.

The Department sought to release the name of an officer identifying the officer as the subject of a disciplinary investigation following a use of force incident that gained widespread notoriety.

Following a use of force incident, a citizen made a complaint against the officer, and the department made statements to the media that the incident was under investigation. The Department informed the officer that they intended to release the officer’s name to the media, identifying him as the officer under investigation for the incident. The Department informed BART POA it intended to release the officer’s name to the press.

BART POA President Keith Garcia immediately moved to protect the officer’s privacy. BART POA sent a cease and desist letter to the Department and prepared an application for a temporary restraining order. Then the POA secured an agreement from the District to preserve the officer’s privacy until the dispute could be heard by a court on an expedited basis.

Then, on April 17, 2014, the Alameda Superior Court and the parties agreed to a preliminary injunction protecting officer privacy until at least 30 days after the California Supreme Court decides two closely related cases.

The California Supreme Court is considering two important cases about peace officers’ privacy rights. In Federated University Police Officers Association v. Superior Court, the Court will decide whether or not the California Public Records Act can be used to force disclosure of peace officers’ names in a report about the use of pepper spray at UC Davis in 2011.

In Long Beach Police Officers Association v. City of Long Beach, the Court will decide whether the California Public Records Act requires agencies to release the names of officers involved in officer-involved shootings. Together, these cases will establish the legal foundation for how these information requests must be treated in the future. In the meantime, officers can protect their rights by pursuing injunctions like the one BART POA won in this case.

Mastagni Law attorneys Kevin A. Flautt, David E. Mastagni, Jeffrey R. A. Edwards, and Brendon P. Parenti represented BART POA in the matter.

Court of Appeal Rules CPRA Does Not Require Public Agencies to Disclose Officials’ Communications on Personal Accounts

On March 27, 2014, the California Court of Appeal held the California Public Records Act (CPRA) does not require public agencies to disclose officials’ communications about public business on personal email and cell phone accounts.  The Court held communications stored solely on private accounts are outside the reach of public records requests under the CPRA.   It is becoming increasingly common for public officials to conduct public business using private accounts.  While members of the public may seek disclosure of officials’ voicemails, text messages, and emails stored on public agencies’ accounts, communications on private accounts are protected from CPRA requests.

In June of 2009, Ted Smith requested, “voicemails, emails or text messages” on personal electronic devices about “matters concerning the City of San Jose” on private electronic devices owned by Mayor Chuck Reed, members of the City Council, and their staff.  The City agreed to produce records stored on its servers and those to or from private devices using City accounts, but refused to provide communications stored solely on personal accounts.  Smith responded by filing a lawsuit in Santa Clara County Superior Court.  The Superior Court sided with Smith and granted his request. 

The Court of Appeal overruled the Superior Court in favor of the City.  The Court found officials’ communications stored solely on personal devices don’t fall within reach of CPRA requests because they are not “owned, used, or retained” by the public agency.  The Court acknowledged public policy concerns of the public’s right to know versus the burden on the agency to provide the information.  However, the Court determined the Legislature is better suited to make such public policy decisions.  

The Court acknowledged public agencies have the right to create its own rules for disclosure of communications related to public business.  In fact, the City of San Jose adopted a resolution addressing this very issue after Smith filed his lawsuit.  Resolution No. 75293 was adopted on March 2, 2010.  The resolution revises City Council Policy 0-33 and allows public access to all communications of the mayor, City Council members, or their staff, regarding public business on private devices.  Mayor Chuck Reed himself signed the resolution.  However, the Court stated that the resolution was not relevant to the Court’s interpretation of the CPRA.

The full court opinion is posted here.